Slip sliding away: Venues NSW v Kane [2023] NSWCA 192

21 September 2023

The NSW Court of Appeal (Court) has recently handed down a decision confirming the scope of an occupier’s liability in respect of failing to take precautions against a risk of harm, in particular, installing a handrail on a stepped aisle.


Kerri Kane (Kane) fell as she descended aisle steps in the western grandstand of the McDonald Jones Stadium
(Stadium). Kane commenced proceedings in the NSW District Court alleging that Venues NSW, a government agency, breached its duty of care as the occupier of the Stadium by failing to install a handrail as a precaution against the risk of harm from the aisle steps.

The NSW District Court entered judgment in favour of Kane in the amount of $91,117.

Venues NSW successfully sought leave to appeal the judgment to the Court. Before the Court the central issue was whether the primary judge erred in finding that a reasonable person in the position of Venues NSW would have installed a handrail as a precaution against the risk of harm resulting from the aisle steps, pursuant to ss5B and 5C of the the Civil Liability Act 2002 (NSW) (CLA).

The decision of the Court

The Court, comprising Leeming JA, Adamson JA and Simpson AJA, unanimously allowed Venues NSW’s appeal.

The Court confirmed the primary judge’s factual finding as to the mechanism of the plaintiff’s fall. The plaintiff placed her foot fully on the step. She slipped. After her foot began to slide, she lost balance. The Court declined to substitute a finding that the plaintiff had overstepped. The Court proceeded on the risk of harm agreed to by the parties and applied by the primary judge namely ‘that of a patron losing their balance and falling and sustaining injuries whilst walking down steps within the stadium‘. Despite its misgiving that s5B was to be applied to risks for ascending stairs as well as descending them.

The Court dismissed the primary judge’s finding of breach because it proceeded on an erroneous construction of s5B of the CLA, and because of the obvious nature of the danger presented by the aisle steps. The Court concluded that a reasonable occupier would not have installed a handrail, and therefore breach of the defendant’s duty of care was not established.

Key legal principles

The Court considered the construction of s5B to be that:

  1. Section 5B(1)(c) is a gateway, in the sense that a plaintiff who fails to satisfy that provision cannot succeed. Section 5B(2)(a)-(d) … are mandatory considerations to be borne in mind in determining the critical conclusion in s5B(1)(c), namely, whether a reasonable person in the defendant’s position would have taken the precaution’. The primary judge’s reasoning was criticised because it treated the 3 paragraphs in s5B(1) and the 4 paragraphs in s5B(2) as all to be taken into account ‘in effect as a form of intuitive synthesis’ [60].
  2. The matters listed in s5B(2) are not exhaustive in determining whether a reasonable person in the position of an occupier would have taken the precaution and should not be regarded ‘…as a checklist which, when all seven paragraphs have been considered, exhausts a court’s consideration of breach [62].
  3. The consideration mandated by s5B(2)(c) regarding the burden of taking precautions to avoid the risk of harm ‘… is required to be undertaken in accordance with s5C(a)‘ [64]. The burden of taking precautions included the burden of taking precautions to avoid similar risks of harm for which the occupier may be responsible.

In respect of the burden to address similar risks of harm, the Court gave consideration to not only the expense of installing handrails on all other stepped aisles, but also to the number of other stepped aisles both in the Stadium and in other outdoor stadiums throughout Australia to conclude that ‘[t]he use of stepped aisles without handrails in similar stadiums is commonplace‘: [76].

In light of the foregoing, the obvious nature of the risk bears significant weight upon the question of whether a reasonable person in the defendant’s position would have taken the precaution and ‘ “… the duty is only to take care which is reasonable under the circumstances” ‘: [66].

This article was written by Nicholas Matkovich, Partner, William Wade, Special Counsel, and Isabela Lawira-Fernandez, Graduate-at-Law.

William Wade

Special Counsel | Sydney

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